On August 28, 2009, the Dallas Court of Appeals issued an opinion relating to intentional underemployment and its impact on determining child support. Pursuant to Section 154.066 of the Texas Family Code, if an obligor is intentionally unemployed or underemployed in an attempt to reduce child support payments, the court’s wage and salary income calculations are not limited to actual earnings, but instead are based on the obligor’s earning potential.
In In the Interest of J.G.L., the Dallas Court of Appeals modified the trial court’s ruling finding that husband was intentionally underemployed in an attempt to reduce his child support payments. In the Interest of J.G.L., No. 05-08-01124-CV — S.W.3d — (Tex. App. – Dallas, August 28, 2009). The court noted that the Texas Family Code requires courts to make specific findings if "[t]he amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines." Id. Thus, a finding of voluntary underemployment allows to the court to set child support at the earning potential, rather than the actual earnings, of the obligor. Id. Once the obligor’s wages are established, the burden shifts to the obligee to show the obligor’s intent to decrease income for the purpose of reducing child support payments. Id. Evidence of such intent can be established through examination of the obligor’s education, economic adversities, business background and earning potential. Id. (citing In re P.J.H., 25 S.W.3d 402, 405-06 (Tex. App. – Fort Worth 2000, no pet.).
At trial, the obligor’s employer testified as to father’s level of income over the preceding three years. Specifically, employer testified that father earned $62,730 in 2005, $76,900 in 2006 and $54,300 in 2007. The employer indicated that father’s work load decreased because of his emotional state during the divorce and because the employer faced adverse economic conditions. Id.
The court then noted that mother had the burden at trial to present evidence of intentional underemployment as a specific basis for departing from child support guidelines applied to father’s 2007 income. Of course, evidence sufficient for this purpose must be of a substantive and probative character. At trial, however, mother did not provide any testimony or offer evidence in support of her assertion that father was intentionally underemployed. Id. As a result, the court held there was no evidence supporting a finding of voluntary underemployment. Id.
J.G.L. shows how important it is to know your rights when it comes to determining child support amounts. In light of the current economic downturn, it is understandable that income levels have dropped. Bottom line: in order to deviate from the child support guidelines, specific evidence must be introduced supporting a claim of intentional under or unemployment.
As a Dallas divorce lawyer, it is critical to stay up to date on new case and statutory law which affects child support orders. If you are facing a claim of intentional under or unemployment, remember the other side bears the burden of proof. Please feel free to contact our offices if you are navigating the child support river and need assistance in doing so.